Sumi Agro v Syngenta (CoA, 19 December 2024)

Dhenne Avocats · 10 October 2026

Our analysis

Summary

In an order of 19 December 2024 (UPC_CoA_523/2024), made in Sumi Agro’s appeal against the Munich Local Division’s order for provisional measures of 27 August 2024 (EP 2 152 073), the Court of Appeal ruled on the admissibility of new evidence under Rule 222.2. It disregarded the textbook extract filed by Sumi Agro on validity, for want of justification for its late filing, together with Syngenta’s conditional counter-evidence, but admitted Syngenta’s exhibits concerning the “Kagura 2024” product. The test is applied exhibit by exhibit, by reference to what each party could reasonably have filed at first instance.

Question

Should the Court of Appeal disregard facts and evidence filed for the first time on appeal against an order for provisional measures?

Decision

The Court exercises its discretion by considering, in particular, whether the party can justify that the new submissions could not reasonably have been made at first instance, their relevance and the position of the other party (paragraph 10). Sumi Agro had already filed other pages of the same publication at first instance, so Exhibit SA17 was disregarded (paragraph 11), as were Exhibits FF28 and FF29, filed only as conditional counter-evidence (paragraph 12). By contrast, the use from a given point in time of a different ingredient in a product marketed under one brand and one set of marketing authorisations could not reasonably have been visible to Syngenta (paragraphs 13 and 14). Since the injunction ordered was of a general nature, it was relevant and in both parties’ interest that the evidence on the possible existence of two different Kagura products be assessed on appeal, and Exhibits FF24 to FF27 were admitted (paragraphs 16 to 18).

Key points for practice

• A party that already had the source at first instance cannot file further extracts from it on appeal without specific justification.
• Evidence of a change in the product which the applicant could not have perceived is admitted on appeal, particularly where the injunction is general.

Provisions applied

Rules of Procedure

Rule 222.2

Prepared by Dhenne Avocats from the official decision, consulted on 10 October 2026. The database is updated every week, on Friday. Only the official text is authoritative.